Overcriminalization: Attacking a Dangerous Precedent

What happens when the Florida legislature eliminates the centuries-old requirement that the government must prove that an accused person acted with criminal intent before he may be punished as a criminal? It risks making almost anyone a criminal – both those who intend to commit a crime and those who do so by accident. And that’s wrong. It’s wrong as a matter of policy, and it’s wrong as a matter of history.

In high school civics class, and from law-and-order television shows and films, every American has learned that in our criminal justice system a person accused of a crime is always presumed innocent until proven guilty. Similarly, the government bears the burden of proving every element of the crime beyond a reasonable doubt. Likewise, we have also learned that in order to be a criminal one must act with criminal intent – what lawyers call mens rea.

That’s why an act by the Florida legislature is of concern to so many criminal-law experts. The Florida legislature decided in 2002 to eliminate from almost every drug possession case one of the most essential safeguards that the rule of law provides to the innocent. In such cases, the State of Florida need no longer prove that the accused acted with any form of criminal intent. The government need not prove that the individual even knew that what he possessed was drugs in order to send him to decades in prison.

At first blush, that may not sound like a bad thing given the damage drugs and drug trafficking do to America. But as one Louisiana court pointed out in a similar case, it “requires little imagination to visualize a situation in which a third party hands the controlled substance to an unknowing individual who then can be charged . . . and . . . convicted without ever being aware of the nature of the substance he was given.” This would be a pretty easy way for bad guys to set up anyone they did not like.

Anyone who thinks this is far-fetched need only consider the story of Cheye Calvo, the mayor of Berwyn Heights, a small Maryland town just inside Washington’s Capital Beltway. The story made national news because Prince George’s County used a SWAT team to storm through Mayor Calvo’s front door, shoot his two Labrador retrievers, and interrogate the bound and half-naked mayor for two hours while he sat in the presence of his mother-in-law, with the dogs’ bloody carcasses surrounding them. Prince George’s law enforcement conducted the raid because an overnight carrier had delivered a package containing marijuana to Mayor Calvo’s doorstep. Calvo took the package inside with him when he brought his dogs in from a walk. Moments later, the Prince George’s County SWAT team was inside shooting Mayor Calvo’s dogs, seizing the unopened package, and handcuffing the mayor himself.

Fortunately for Mayor Calvo and everyone else in his house, Maryland, unlike Florida, still requires the government to prove that a person acted with criminal intent. In other words, Maryland law enforcement officials were required to look for evidence that the mayor, his wife, or his mother-in-law knew the package contained contraband and possessed it nevertheless, that is, with criminal intent.

As a result, Prince George’s county eventually cleared Mayor Calvo (and, one should add, agreed to an undisclosed settlement of his claims arising from the SWAT team’s hyper-aggressive tactics). The investigation determined that a drug ring had been using the overnight carrier to drop off packages of drugs at the residences of innocent third parties and sending another member of the ring to pick up the packages. But if the same thing had happened in Florida, the mayor could have been sent to prison without the government presenting any evidence that he knew drugs were in the package.

Fortunately, a federal judge in Florida is also concerned about the law. She is affording those concerned about the dangers of overcriminalization a chance to head off grave injustices in this whole class of Florida prosecutions. A friend-of-the-court brief (PDF) submitted in the case of Mackle Shelton by the National Association of Criminal Defense Lawyers (NACDL), 38 professors of law, and four other organizations details the dangerous – and arguably unconstitutional – precedent that the Florida law would set. These friends of the court don’t dispute that criminal law should enable government officials to investigate, prosecute, and punish bad guys.

But the Florida legislature seems to have forgotten that criminal law has two other purposes that are equally as important. First, criminal law should be written in a clear, definite, and precise manner that limits the power of government officials to make criminals of whomever they may choose. Second, criminal law should be defined in a manner that clearly informs honest Americans who want to remain law-abiding what they must do to avoid becoming a criminal.

Laws that enable the government to convict and punish individuals who act without criminal intent fail to fulfill these two essential purposes of criminal law. Such laws invite abuse and injustice. Regardless of what the federal court decides in the case of Mackle Shelton about the constitutionality of the Florida legislature’s act, the legislature made a grave and fundamental error.

Brian W. Walsh is the Senior Legal Research Fellow in The Heritage Foundation's Center for Legal and Judicial Studies. Walsh directs Heritage's projects on countering the abuse of the criminal law and criminal process, particularly at the federal level. His work also focuses on efforts to ensure that national and homeland security measures include protections for constitutional and other civil liberties.

Maintaining the presumption of innocence until guilt can be proven is essential to American criminal justice. It helps to remember Blackstone's formulation: "better that ten guilty persons escape than that one innocent suffer." Perspective is everything.

The English jurist William Blackstone, who authored his formulation in his "Commentaries on the Laws of England" (1760s), hearkened back to Abraham's negotiation with God concerning the fate of Sodom (Genesis 18:22-33). The formulation does not describe forgiveness, nor does it recommend lackadaisical jurisprudence. Rather, it struggles to balance the need for law and order with a plain recognition of the human condition, for as Saint Paul observed: "all have sinned and fall short of the glory of God." (Romans 3:23)

I would go one more step — an afterwards step. American criminal justice needs to be tempered by the following Bible story about the woman caught in adultery:

At dawn he appeared again in the temple courts, where all the people gathered around him, and he sat down to teach them. The teachers of the law and the Pharisees brought in a woman caught in adultery. They made her stand before the group and said to Jesus, “Teacher, this woman was caught in the act of adultery. In the Law Moses commanded us to stone such women. Now what do you say?” They were using this question as a trap, in order to have a basis for accusing him.

But Jesus bent down and started to write on the ground with his finger. When they kept on questioning him, he straightened up and said to them, “Let any one of you who is without sin be the first to throw a stone at her.” Again he stooped down and wrote on the ground.

At this, those who heard began to go away one at a time, the older ones first, until only Jesus was left, with the woman still standing there. Jesus straightened up and asked her, “Woman, where are they? Has no one condemned you?”

“No one, sir,” she said.

“Then neither do I condemn you,” Jesus declared. “Go now and leave your life of sin.”

(John 8:2-11)

* * *

The most telling words in that story are these: "… those who heard began to go away one at a time, the older ones first, …" Yes, the older ones first. One must ask: Are the older ones among us leading the way in 2011? And are the younger ones following? It seems to me a Dubious Achievement Award should be given out as needed in America today, that being a T-shirt emblazoned: I THREW THE FIRST STONE.

1. On the Fourth of July every year, the President of the United States should pardon fifty federal prisoners (one for every State in the Union) who are U.S. military combat veterans, and should grant each of the pardoned veterans the resources necessary to again become productive citizens. Why do it? Contemplate Mark 15:1-15 and then ask yourself this: If the Roman rulers in Jerusalem in Jesus' time were willing to release one prisoner every year at the Feast, even someone guilty of insurrection and murder such as Barabbas, then why cannot the U.S. president pardon and release select federal prisoners who at an earlier time in their lives served honorably to preserve our nation's liberty as American troops in combat? Many veterans have suffered their whole lives after leaving the military because of the horrors they endured in combat, and too often that suffering has led to crime and prison. What I propose would force us as a nation to own our responsibility for the aftermath of war, and it would also create hope for many veterans who now deserve a second chance at becoming productive citizens.

* * *

What is justice? I do not know the answer to that question in every case, but I do know I would rather be among the first who "began to go away" than be among the last. A person should know his/her sin, and society must protect itself from those who are dangerous. But much more often than not, the answer to the question "What is justice?" is just one word: forgiveness.

In his Sermon on the Mount, Jesus said: "Do not judge, or you too will be judged. For in the same way you judge others, you will be judged, and with the measure you use, it will be measured to you." (Matthew 7:1-2) Therefore, regarding my proposal to grant presidential pardons every Fourth of July to fifty federal prisoners who are U.S. military combat veterans, let the advisory panel for the president be comprised of peers of the prisoners, that is: former brothers and sisters in arms — decorated U.S. military combat veterans. They will know whom to bless. Trust them.

We remember things in school that defines crazy like placing our tongue on the flag pole at 10 degrees or kissing your little girlfriend in the janitors closet in grammar school. ( hi Debbie ).

How about putting a BIG spider in your teachers desk when you know she has arachnophobia ( hi Mrs Moody ).

Time goes on and the childish pranks subside and we move on to High School and become "daring", armed with gifted and Intelligent "knowledge". Now comes one Raymond Tate…

My friend and I Came up with a "pot plot" at Dover High to have Marijuana on hand at our disposal.

I had a friend who"s father was the band and music teacher no less and he would grow stocky N.H. "swag" that only yielded leaves (no buds) and was lackluster at best, but by placing the leaves in a cookie sheet and marinating them in 151 Rum for a couple of days, then dry them out, "presto", there my friends you had some fine "Headies"

After smoking, you would become stoned and drunk at the same time from the vapor created in the smoke of the THC and rum.

Problem: My teenage friend moved away from the Dover area and we lost the way to "trade" this highly sought after commerce.

He suggested using the US Mail service and this is where school comes into play.

I, and my Friend Paul walked up and down Durham Rd close to the High school looking for a suitable address for mail delivery, and found a single middle aged woman that left her residence everyday for work.

We would have our "wholesale distributor" send a package of this fine smoke once a week and it would arrive usually on Tuesday's to this undisclosed address. We would go there faithfully and pick up our package nervously, but confidently and disburse the spoil amongst our circle of friends.

Everyday whenever we wanted, we was getting "Educated" at one of the greatest educational institutions on this planet and beyond, Dover HIgh School. Welcome to planet earth!

I am writing about the rule of law. Point 1) Many people act as if the "rule of law" works in a vacuum. It does not. Laws work in concert with each other: some times dissonant, some times harmonious. Sometimes they are even written to pique either. 2)"preponderance of the truth" does not mean that there is "only one truth". It's probably best to leave that to the God that is. 3) It may or may not speak to the reality of the truth of today but only to the that of that moment when those "laws" were not just written but written and understood by a court. 4) there still exist both just and unjust laws and many courts give great latitude to officers (rightly or wrongly) who pursue the enforcing those laws. It's been known that some people over step those laws in the pursuit of "doing their job". I could go on but I believe that laws are some thing to be faced, not romanticized. Eg: when you stop at a red light you maybe stopping because you may get a ticket. I'd rather think it's because it's because you rather no kill yourself or others. Peace, IzOPnYDe

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'It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.' "Federalist Paper 62" – James Madison

This sort of creeping encroachment on rights is the only possible result of "the war on drugs". At some point, rational people will have to say "Enough!" and legalize this junk, just to stop the "war on liberty".

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